EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Disability-Related Inquiries and Medical Exminations

August 6, 2001

Dear :

This is in response to your letter of June 25, 2001, inquiring whether the involvement of a mental health professional, such as a licensed psychologist, in evaluating an applicant's non-medical information constitutes a medical examination under the Americans with Disabilities Act (ADA).

General Principles

As you are aware, the ADA prohibits medical examinations and disability-related inquiries prior to a conditional job offer. Medical examinations and disability-related inquiries can be done during the "post-offer" period, as long as all applicants for a specific job category are subject to them. In order for a job offer to be considered bona fide, an employer must evaluate all relevant non-medical information which it reasonably could have obtained and analyzed prior to making the
offer.

The EEOC, in its October 1995 Enforcement Guidance on Preemployment Disability-Related Questions and Medical Examinations, offered a list of factors that are helpful in determining whether a procedure or test is medical. In some instances one factor may determine whether a test is medical, while in other situations a consideration of several factors will be necessary. One factor is whether a test is administered or the results are interpreted by a health care professional. However, the
involvement of a mental health professional, such as a licensed psychologist, would not alone be determinative of whether a particular test administered or reviewed by this individual is "medical ." Other factors would need to be assessed, including whether the test is designed to reveal a mental impairment and whether the employer is trying to determine whether the applicant has a mental impairment.

The Preemployment Guidance states that psychological examinations are medical if they provide evidence that would lead to identifying a mental disorder or impairment, such as those listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). In contrast, psychological tests that are only designed and used to measure such things as honesty, tastes, and habits would not be "medical." The Commission elaborated on this point in its March 1997 Enforcement Guidance on the ADA
and Psychiatric Disabilities, stating that "[t]raits and behaviors are not, in themselves, mental impairments, although they may be linked to mental impairments." Such personality traits include stress, irritability and anger management, chronic lateness, poor judgment, integrity, teamwork, and prejudice. Questions or tests designed to determine whether an applicant exhibits any of these traits, behaviors or temperaments would not be considered medical and must be done during the pre-offer
stage. As noted above, such tests would not become "medical" examinations solely because a psychologist administers and interprets them.

Application of These Principles to Your "Split-Level" Assessment

Your letter states that during the pre-offer stage you give and interpret tests that are "completely free of any references to disabilities or emotional disturbances, and are not used for diagnostic purposes." Your letter also notes that these pre-offer assessments do not inquire about alcoholism, drug addiction, or treatment for emotional disorders. Instead, you state that you make assessments about "general intelligence, logical processing, and abstract reasoning ability." At the
post-offer stage, after an applicant has received a conditional offer of employment, you again meet with the selected applicants and ask questions about alcoholism, drug addiction, and any history of treatment for mental illness. You also give them a psychological test "designed to assess pathology, such as depression or anxiety."

From the description you provide, it appears that your "split-level" assessment follows the requirements of the ADA as enunciated in the EEOC's guidances. First, your pre-offer inquiries and examinations assess personality traits, temperaments, and reasoning abilities -- to determine what you call "emotional suitability." Second, your post-offer questions and medical examinations determine the existence of any mental impairment that might preclude an individual from being a police
officer.

From your letter, it appears that the State of Michigan requires that anyone who is not determined to be "free of emotional instability" automatically be disqualified for law enforcement positions. Please note, however, that if you determine through a post-offer medical examination that an applicant has a mental disability, and a law enforcement agency decides to withdraw the job offer, the ADA requires that the agency show that the reason for the revocation is job-related and consistent
with business necessity. In other words, the agency must show either that the individual cannot perform the essential functions of the position, with or without reasonable accommodation, or that the individual poses a direct threat to himself or others that cannot be eliminated with a reasonable accommodation.

I hope this information is helpful. This is not an official opinion of the Commission.